INDIA: Acquittal of Pramod Muthalik and others is a shocking travesty of justice

On March 13 2018, the Third Judicial Magistrate at the First Class Court in Mangalore acquitted Pramod Muthalik, and 25 other members of the Sri Rama Sene of the 2009 assault of several women in a Amnesia, a Mangalore pub. The Sri Ram Sene is a right-wing Hindutva group that has previously been involved in incidents of moral policing in Mangalore. The incident, which took place on January 24, 2009, involved women being slapped and dragged out from the pub by their hair; the assailants, who were allegedly members of the group, also verbally abused the women as “loose”. The assault was captured on camera, and the existence of video evidence was considered as irrefutable proof of the accused’s guilt. Yet, over nine years after the incident, and after Muthalik publicly admitted to it being a “big mistake”, he and his henchmen have been absolved of guilt in the case.

The failure to convict cannot be laid solely at the feet of the prosecutor or the Magistrate; instead, it can be attributed to the scare tactics used to dissuade witnesses from testifying, and the lack of protection for the victims of the assault. None of the victims of the assault testified in the case, with sources claiming that they were too afraid to testify against their attackers. While 30 men were involved in the attack, only 26 were actually in court during the trial; two were deceased, while the other two were absconding. Muthalik, in the meantime, launched the Karnataka Unit of the Shiv Sena in January this year, aiming to contest about 50 seats in the upcoming State elections. This move has attracted suspicion as convicted persons are not permitted to stand for election under the Representation of People Act. A large part of Muthalik’s acquittal was the presumably, the exclusion of the video from admissible evidence; since the judgment passed by the Magistrate is presently unavailable, one can only speculate as to why the video was deemed inadmissible. The likely reason is that, while videos are admissible as “electronic evidence” under Section 65 of the Evidence Act, their authenticity must be proven by a competent witness, preferably the maker of the video [Anvar P.V. v. P.K. Basheer, AIR 2015 SC180]. By creating an extra-legal and extra-judicial culture of fear, Muthalik and his followers were able to subvert the legal system, ensuring that witnesses were too afraid to authenticate the contents of the video while validating hooliganism and assault in the name of ‘culture’.

While the two main factors in his acquittal were the inadmissibility of the video, and the refusal of witnesses to testify, the latter could be due to the political power and fear that Muthalik and his men command in the area, along with the stigma and fear that victims of violence internalise. Prior to his founding of the Ram Sene, Muthalik worked closely with the Bajrang Dal and the Shiv Sena; in the aftermath of the 2009 attack, Muthalik’s group did not lay low, instead threatening to attack unmarried couples on Valentine’s Day. While incidents of moral policing are not uncommon in India, this acquittal has only emboldened fundamentalists to indulge in violence against citizens, particularly women. It must be noted that in the aftermath of the attack, Muthalik was given patronage by the BJP in 2014, only being dropped after the national leadership objected. The lackadaisical investigation into the attacks, and the rise in such attacks across the country, shows that the government is not interested in combating violence against women, moral policing, or religious fundamentalism. Nor has any political party actively evinced an interest in this; while the BJP was in power during the attack, the Congress Party formed a government in the state soon after, and, has been in power for the pendency of the trial.

This case puts the spotlight back on the crumbling and ineffective system of public prosecution in India. The great power wielded by the prosecutor to prove a case is usually destroyed by ineffective investigation and corruption by the police. Many a time, the police and prosecution are in collusion with each other to ensure that the accused persons is acquitted or conversely, an innocent person is framed and found guilty. Majoritarian and populist demands are essentialised by the police and the prosecution resulting in insufficient evidence and the failure to prove a case. In cases of sexual assault and gender-based violence, these majoritarian demands take the form of existing patriarchal norms and structures, internalised by law enforcement officials and the prosecution as well as defence lawyers.

The Supreme Court of India in the judgment in Justice K.S. Puttusamy & Anr. v. UOI. & Ors ruled that the right to privacy is a fundamental right. The right to privacy is the right to bodily integrity and human dignity and therefore in its basic form it is the right against moral policing, the right to partake in ‘wine culture’ and behave with ‘loose morals’ if one so wishes. The likes of the Sri Ram Sene and Pramod Muthalik must be prevented from threatening and attacking hapless individuals, usually women, going about their lives, and attempting to live with the freedom they are entitled to, as human beings.

The Asian Human Rights Commission (AHRC) stands in solidarity with the victims of moral policing, and with everyone who is demanding that the verdict is appealed by the State Government. The judgment of the trial court must be swiftly appealed and if a higher court finds that the prosecution, the police and lower judiciary failed in its duty by bypassing due process, they must be duly penalised. The acquittal of Muthalik and his men is an unfortunate validation of a violent patriarchy that is so endemic in India and every effort must be expended to cull it.